Wohlstedter v. Klein

159 N.Y.S. 89

Opinion

PER CURIAM.

This action is brought against the indorser of a promissory note. At the opening of the trial the plaintiff’s attorney stated that the making of the note and the indorsement by the defendant appellant was admitted, and he then offered “the note and protest.” This was objected to, upon the ground that the defendant had never received a notice of protest. The plaintiff’s attorney thereupon withdrew the offer, and offered the note in evidence, which was received. The offer of the notice of protest in evidence was not again renewed during the trial, and no notice of protest is in evidence. The assistant manager of the bank which had the note for collection was called as a witness, and he testified to the presentation of the note to the bank where it was made payable, and that demand for payment was made and refused, and that subsequently and on the same day he sent “a notice” to tire defendant. What the notice was does not appear. The defendant denied ever receiving a notice of any kind, and in the absence of proof of service of a notice of protest the plaintiff could not recover. There was a failure of proof, and the judgment must be reversed.

Judgment reversed, and new trial ordered, with $30 costs to the appellant to abide the event.